Over the next few weeks, we will be starting our rollout of the Lawfare Wiki Document Library. The library will have many facets, and we will be introducing it piece by piece, sometimes page by page. The first page, a … Read more »
As Raff noted last week, the lawyers for the defendant-appellant in United States v. al-Bahlul–the military commission case in which the D.C. Circuit surprisingly granted rehearing en banc–had moved to “clarify” the scope of such rehearing, including … Read more »
As Wells noted on Tuesday, the D.C. Circuit granted the government’s petition for rehearing en banc in Al-Bahlul v. United States. This is a very important development, as the full appeals court will now determine whether military commissions may … Read more »
Military commission accused Ali Hamza Ahmad Sulaiman al-Bahlul has submitted his response to the government’s petition for rehearing by the full D.C. Circuit. In January, a 3-judge panel of that court vacated al-Bahlul’s conviction for conspiracy. The Department of Justice … Read more »
The New York Times has a news analysis piece by this morning the excellent Charlie Savage, which requires a moment’s reflection. Charlie is about as good a reporter as there is out there on Lawfare-related matters, and he has … Read more »
The Guantánamo military commissions yesterday released—after a security review—a pair of important filings by the Office of the Chief Prosecutor (OCP), regarding the ongoing controversy over the conspiracy charges against the five 9/11 defendants. (For background, see our prior coverage … Read more »
Here’s the word from James Connell III, lawyer for 9/11 accused Ammar al-Baluchi. Note his surmise that the “conspiracy charges issue” may not be up for argument before the military commission until later this spring:
Today, the D.C.
Here ’tis. From the supplemental brief’s “Summary of Argument” section:
We agree with the government that Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012) (“Hamdan II”), compels this Court to vacate the judgment below. Resp. Supp.
Fresh from a security scrub are these two items in United States v. Mohammed et. al.: first, an Amended Docketing order, wherein Judge James Pohl excises two previously scheduled defense motions to compel discovery from the agenda for … Read more »
We end the evening with this procedural nugget from Jess Bravin of the Wall Street Journal: in Hamdan II, the deadline for the United States to seek en banc review from the D.C. Circuit, or a writ of … Read more »
An informed observer in the executive branch writes in response to Bobby and my post of earlier today on Eric Holder’s decision to continue the appeal in Al Bahlul:
Let me offer for your consideration an alternative explanation for
Reported on Friday by the Miami Herald’s Carol Rosenberg: defense attorneys in United States v. Al-Nashiri filed a renewed motion to dismiss the conspiracy charge against their client. At the same time, the lawyers reactivated an earlier request to throw … Read more »
We refrained last week from expressing much opinion on the decisions by both Military Commissions Chief Prosecutor Mark Martins and by the Justice Department in the Al Bahlul case concerning how to handle stand-alone inchoate conspiracy charges after Hamdan II… Read more »
In this special episode of the Lawfare Podcast, Military Commission Chief Prosecutor Brigadier General Mark Martins discusses his decision to recommend dropping conspiracy charges against Khalid Sheikh Mohammed and the other 9/11 defendants. Martins announced yesterday that in light … Read more »
…is available here. In a nutshell:
Hamdan II requires reversal of Bahlul’s convictions by military commission of providing material support for terrorism, conspiracy to commit war crimes, and solicitation to commit war crimes. Because the Court is bound by
Apropos of Charlie Savage’s story (and Bobby’s follow-up) on the government’s litigation tactics in Hamdan and al-Bahlul: assuming the material support and conspiracy charges in those cases indeed are tossed out (through final invalidation by the courts, or through … Read more »
[UPDATED 3:18 p.m.] Lawyers for military commission accused Ali Hamza Suliman Ahmad Al-Bahlul have filed their supplemental, what-do-we-make-of-Hamdan brief with the D.C. Circuit. The government’s response is due on January 9 of next year; the accused’s reply is due … Read more »
Peter Margulies of Roger Williams School of Law writes in with the following comments on Hamdan II–following up on his post immediately after the decision:
Even if one agrees with the Hamdan II panel that material support isn’t
This is interesting. The D.C. Circuit Court of Appeals has just entered the following docket order in the military commission appeal of Ali Hamza Ahmad al Bahlul:
CLERK’S ORDER filed . . . , on the court’s own motion, that
The disqualification and technical issues resolved—and Judge Pohl suddenly audible—the judge and parties move briskly to the next issue: the notice of Michel Paradis’ “undetailing” from the case (AE83). There isn’t a motion there, per se; though Judge Pohl notes … Read more »
Judge James Pohl has denied two motions to dismiss for lack of personal jurisdiction in United States v. Al-Nashiri. Though handed down on June 19, Pohl’s two orders became available only more recently, after they each completed the Defense Department’s … Read more »
When we last checked in on United States v. Al-Nashiri, the docket indicated that Judge James Pohl had resolved five of the defendant’s pending motions. Of these, three orders had cleared security review: in them, the commission rejected the … Read more »
Your Lawfare day is winding down at long last. You’ve just savored a scholarly exchange on the D.C. Circuit’s fidelity to Boumediene. The table is cleared, and you’ve just settled into your comfy, oversized armchair. It’s time for a … Read more »
A few weeks back we noted that Ali Hamza Ahmad al Bahlul filed his petitioner brief in the D.C. Circuit Court in his appeal from the military commission’s judgment and sentence against him. Now comes his petition for the D.C. … Read more »
I received this evening a most extraordinary guest post. It isn’t every day that someone sends me a memo outlining how a four-justice plurality of the Supreme Court got a key historical point wrong in a major case–much less does … Read more »
Another amicus brief has been filed in the D.C. Circuit appeal of the military commission of Ali Hamza Ahmad Suliman Al Bahlul, this time by former members of the U.S. Intelligence Community.
Arguing on behalf of Bahlul and in favor … Read more »
Two new amicus briefs have been filed in Bahlul v. United States in the D.C. Circuit Court recently. The first is a brief on behalf of international law professors (including our own Steve Vladeck). Its main arguments are that conspiracy, … Read more »
Don’t let it ever be said that the D.C. Circuit always rules against detainees. Today, a three-judge panel ruled kept Ali Hamza Ahmad Suliman Al Bahlul’s military commission appeal alive–likely against Al Bahlul’s will.
The government, as you may … Read more »
The saga of whether Ali Hamza Ahmad Suliman Al Bahlul’s counsel rightly represents him before the D.C. Circuit in his military commissions appeal continues. The government, you’ll recall from prior coverage, has challenged whether the Al Bahlul had really authorized … Read more »
The government has filed a reply brief in the dispute over whether Ali Hamza Ahmad Suliman al Bahlul’s counsel, Michel Paradis, properly represents Al Bahlul in the D.C. Circuit appeal of his military commission conviction and sentence. The earlier briefs … Read more »
Several days ago, the government moved in the D.C. Circuit to challenge the counsel–and thus end the appeal–of Ali Hamza Ahmad Suliman Al Bahlul, whose military commission conviction and life sentence is currently on appeal in that court. The court … Read more »
Wednesday’s arraignment hearing of Abd al-Rahim al-Nashiri began about twenty minutes after 9 a.m., roughly two hours after most reporters arrived at the Ft. Meade, Maryland remote viewing location. Before jumping into the details of the hearing, I want to … Read more »
Here’s an interesting military commission development.
The government has moved to disqualify counsel–and thus end the appeal–of Ali Hamza Ahmad Suliman Al Bahlul, whose military commission conviction and life sentence is currently on appeal to the D.C. Circuit. The … Read more »
Kevin writes in with a final round of thoughts in his exchange with Peter in regards to the CMCR decision in al-Bahlul:
Peter continues to miss the central issue in al-Bahlul: namely, whether “any of the acts charged
Kevin Heller (Melbourne) writes in with a response to last night’s post from Peter Margulies on the CMCR decision in Al-Bahlul:
Peter Margulies is absolutely right that I ignore the factual differences between Hamdan and al-Bahlul. But that
Peter Margulies (Roger Williams) takes up one of the central issues addressed in the CMCR’s decision last Friday in al-Bahlul:
Material support charges in military commissions illustrate the perils of painting with a broad brush. In United States v.
The U.S. Court of Military Commission Review yesterday evening affirmed the conviction and life sentence of Ali Hamza Ahmad Suliman Al Bahlul, an Al Qaeda media propagandist. I have not yet read the 139-page opinion, which is available here. … Read more »
Yesterday I noted that I’d summarize the United States v. Hamdan oral argument in the Court of Military Commission Review separately from Al Bahlul. I’ll note the same caveats with respect to this summary as to those I mentioned … Read more »
The following is my best attempt to summarize some of the arguments made at this morning’s oral argument in United States v. Al Bahlul. This argument–audio for which is here–stood in considerable contrast to the Hamdan session (which … Read more »
The audio from today’s oral arguments at the CMCR is available here (for the Hamdan argument) and here (for the al-Bahlul argument). Be forewarned that these are hefty files (if I recall correctly, around 40mb each). Fortunately, Larkin Reynolds was … Read more »
Al-Bahlul (though not Hamdan, so far as I know) has filed a reply brief in relation to the en banc CMCR proceedings (oral argument this morning). The brief is posted here.
As promised yesterday, I’m posting a short overview of the arguments in the government’s briefs to the en banc CMCR in al-Bahlul and Hamdan (click here for an earlier post doing the same for the appellants’ briefs). Recall that the … Read more »
The CMCR has released handy “preview” documents for tomorrow’s en banc proceedings in al-Bahlul and Hamdan. They give bios for all the judges, list the attorneys involved, give a summary of the issues, note the address and room number … Read more »
The en banc Court of Military Commission Review will hear oral argument this Thursday in al-Bahlul and Hamdan. These cases are critical to the future of the military commission system. They call into question the viability of conspiracy and material … Read more »
On February 24th, as directed by the en banc Court of Military Commission Review, the appellants in al Bahlul and Hamdan filed briefs addressing two questions:
I. Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of
Tuesday, May 21, 2013
William P. Barr (former Attorney General), Jamie S. Gorelick (former Deputy AG), and Kenneth L. Wainstein (former Assistant AG for National Security) have this Times op-ed on the AP subpoena controversy. They write:
While neither we nor the critics know the circumstances behind the prosecutors’ decision to issue this subpoena, we do know from the government’s public disclosures that the prosecutors were right to investigate this leak
